Adams v. Nickerson , 83 Mass. 427 ( 1861 )

Merrick, J.

If Kelley had transmitted his draft with an intention that so much of its proceeds as should be necessary therefor should be received by the defendant in payment of the note of Adams then held by him, and that the balance should be paid to Adams in satisfaction of his claim against Kelley, and this had been known to the defendant, undoubtedly an implication would have arisen from his acceptance of the draft and its proceeds, under such circumstances and with such knowledge, that he did in effect engage and promise to pay the surplus which might remain in his hands, above the amount due to himself, to the plaintiff. All this is assumed by the plaintiff as a matter of fact proved, or offered to be proved upon the trial, to have been known to the defendant. But, upon examination of the statements in the bill of exceptions, it is manifest that no evidence to that effect was introduced or tendered by the plaintiff upon the trial. On the contrary, it appears from the testimony of Billings, a witness produced by him and in his behalf, that the draft was sent by Kelley to Billings, who did not communicate, or remember that he communicated, to the defendant the order or directions of Kelley concerning it; but that he delivered the draft to the defendant, and took from him at the same time a written receipt therefor, including in it a promise to pay to himself whatever excess above the balance due on the note of Adams might, after such application of part of the proceeds, still remain in his hands; and that, in pursuance of that agreement, the defendant did in fact afterwards pay to him the ascertained amount of that excess. The dealing of the defendant was solely with the agent of Kelley; and, as to the balance of the draft above his own claim, he conformed to the terms which the agent, acting under Kelley’s authority, prescribed. It is true that the plaintiff introduced evidence tending to show that Lang informed the defendant, before Kelley’s draft was received, that Adams had written to Kelley requesting him to transmit to the defendant the amount both of the balance due on the note and on his own claim. But no evidence was produced or offered tending to show that Kelley yielded, or was disposed to yield, to the request; or that the draft was forwarded with any intention to have any portion of its proceeds delivered or paid to the plaintiff.

The evidence offered by the plaintiff to prove the contents of the letters from Adams to Kelley and from Kelley to Billings was properly excluded. The statements contained in them were made by persons who were strangers to the defendant; and it was not suggested that he had any knowledge of those statements until he had paid all the balance of the money in his hands belonging to Kelley over to his agent Billings, who was authorized to receive it. It was mere hearsay, and of course inadmissible.

As there was no evidence in the case on which the jury could, in any aspect of it, have found any indebtedness of Nickerson to the plantiff, or have been warranted in finding a verdict in his behalf, the ruling of the court, that the action could not be maintained, was correct. Exceptions overruled.